Damron v. Commonwealth

STEPHENSON, Justice.

Ronnie Damron was convicted by a jury with verdicts as follows: escape in the first degree — five years; kidnapping a jailer— ten years; kidnapping a church pianist— ten years; theft over $100 — one year.

At the second stage of the trial, he was found guilty of being a persistent felony offender in the first degree and sentenced to twenty-one years’ imprisonment.

Damron and four other inmates of the Caldwell County jail overpowered a deputy jailer, tied him with a torn sheet, and fled the premises.

All of the inmates, after leaving the jail, broke into and spent the night in a nearby church. The next day the church pianist arrived at the church for the purpose of practicing. The former inmates overpowered her, tied her to a chair, and taking her car keys, left in her car. Damron was later apprehended in Indiana.

Damron presents four assertions of reversible error.

First, he asked for and was denied a “choice of evils” instruction, KRS 503.030. Damron testified that he escaped from jail because it was a “matter of life or death.” He testified that he was ill while in jail, lost weight, and suffered severe chest pains. Further, he testified he had been denied medical attention and felt that “it was serious enough that my life was in jeopardy.”

We are of the opinion the situation described by Damron is not sufficient to invoke the provisions of KRS 503.030. There must be a showing of a specific and imminent threat to his person in order to justify the giving of the instruction. See Senay v. Commonwealth, Ky., 650 S.W.2d 259 (1983).

Next, Damron argues that he should not have been convicted of being a first-degree persistent felony offender since he was convicted of several felonies, including a conviction for escape from jail, with concurrent sentences. KRS 532.080(4) provides:

For the purpose of determining whether a person has two (2) or more previous felony convictions, two (2) or more convictions of crime for which that person served concurrent or uninterrupted consecutive terms of imprisonment shall be deemed to be only one conviction, unless one (1) of the convictions was for an offense committed while that person was imprisoned. (Emphasis added.)

Damron argues that he was in jail and that is not imprisonment within the meaning of the statute. Thus, he asserts there is proof of only one prior felony which would not subject him to first-degree status.

Simply put, does “imprisonment,” as used in the statute, contemplate jail custody while awaiting trial as well as imprisonment in a penitentiary? We are of the opinion escape from jail is encompassed in the statute.

The commentary to KRS 532.080(4) provides:

... When an individual has been convicted two times before serving any time in prison, his convictions shall be considered a single conviction for purposes of this section. This is another effort to avoid the label of persistent felony offender for persons who might be rehabilitated through an ordinary term of imprisonment for the offense most recently committed.

It is plain that the commentary is centered on the defendant being exposed to rehabilitative efforts. We regard the commentary as good advice but not necessarily all inclusive. It is pertinent as far as it goes but does not contemplate the present situation. We hold that escape from jail is an offense committed while that person was imprisoned. It is apparent that the legislature intended to deal more harshly with persons who commit crimes while incarcerated. The present situation fits legislative intent portrayed by KRS 532.080(4).

Damron was also convicted of kidnapping in the restraint of the church pianist. The jury was instructed to find Dam-ron guilty of the kidnapping of the pianist if it believed beyond a reasonable doubt that the restraint was to further the commission of theft of the car and escape. There was not a specific objection to this instruction, only a general objection that there was not sufficient evidence to convict. Although “weak,” we give Damron the benefit of the doubt and consider his argument. The proof on the charge of kidnapping the pianist is not different in any respect or degree from the proof of kidnapping of the jailer, not argued here. Certainly this restraint was to accomplish or to advance the commission of a felony (theft of the car), KRS 509.040(l)(b). Dam-ron’s argument that “she was being restrained merely to allow the theft to go smoothly without interference” does not take this case out of the operation of the statute.

At oral argument, there was an assertion the conviction on this point must be reversed for the reason that the escape had been completed. Without getting into a hair-splitting thesis on when the escape is completed, we hold that a jury issue of the matter was made out here, and there is evidence to sustain the kidnapping conviction under the facts of this case.

We have examined the complaints about the final argument by the Commonwealth and are of the opinion there is no reversible error in this respect.

The judgment is affirmed.

STEPHENS, C.J., and AKER, GANT, STEPHENSON, VANCE and WINTER-SHEIMER, JJ., concur. LEIBSON, J., dissents and files a separate dissenting opinion.